Wednesday, December 3, 2008

Nelson on Summary Judgment and the Progressive Constitution

William E. Nelson, NYU Law School, has posted Summary Judgment and the Progressive Constitution, a contribution to a symposium on Suja Thomas's "Why Summary Judgment In Unconstitutional," Virginia Law Review 93 (2007). In this comment, which is forthcoming in volume 93 of the Iowa Law Review, Professor Nelson combines two of his areas of expertise--the eighteenth-century American trial and the role of history in constitutional interpretation--to defend summary judgment and the recent case of Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). Professor Thomas's historical account of the power of the eighteenth-century jury is accurate enough, Professor Nelson allows, but because the jury no longer serves as a localist check on central power as it did when the Antifederalists proposed the Seventh Amendment, invalidating summary judgment or overruling Twombly is more likely to shunt "the constitutional train onto a siding that leads nowhere" than to "follow the main line of American constitutional development." The essay thus points out a non sequitur for originalists who move too quickly from historical investigations of the past to invocations of their findings in constitutional argument.